DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

  ex-Pvt, USMC
Docket No. MD03-00463

Applicant’s Request

The application for discharge review was received on 20030122.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031205.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My name is, M_ W_ (Applicant) and I am writing this letter to request an upgrade in status of my military discharge. I was discharged from the Marine Corp. in March 1990, however my actual separation date is December 1989 (after serving 3 years and 10 months of a 4 year enlistment).

During the course of my enlistment I was involved in several Article 15 hearings. I believe that many of these were unjust and that I was unfairly targeted for reason other than my behavior and ability to perform my duties as a Marine. I always gave 110%! Never dropped out of a run or march and did well in M. 0. S. training school. I always scored high on P.T. exams, the rifle and pistol range, swim qualification and numerous other training exercises. I was given a meritorious mast in an I.G. inspection and promoted to Lance Corporal.

On my behalf I would like to add that at the time of these infractions I was young and immature. Prior to entering the Marine Corp. I had no role models or disciplinary figures in my life. I lost my parents at an early age and no one to turn or look up too. This may have been a factor in some of the problems that I experience in the Corp. However, I am not going to start finger pointing or placing blame on others. I accept full responsibility.

The main reason I am able to accept this responsibility is strongly due to my training in the Marine Corp. I have grown and matured into an adult who is a productive member of society, has held a steady job since my discharge and has no criminal record. I am a positive role model in my community, mentoring the youth at a neighborhood outreach program and in my church I am an active member. All of these things are made possible because of what I learned and lived in the Marines.
Becoming a Marine was one of the most important things that I have done in my life, and by receiving this upgrade it would mean that everything that I have started I have completed honorably.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Letter of recommendation dated June 15, 2001
Letter of recommendation dated August 14, 2002

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive: USMCR(J)		850827 – 860227        COG

Period of Service Under Review:

Date of Enlistment:  860228		Date of Discharge:  900330

Length of Service (years, months, days):

	Active:    04  01  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11			AFQT:  59

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  3.5 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, SSDR 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

861202:	Counseled for deficiencies in performance and conduct.  [Failed to walk post in a military manner, belligerent attitude.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861205:	NJP for violation of UCMJ, Article 92 (2 specs):
		Specification 1:  On  0500, 861202, fell asleep on security watch.
		Specification 2:  On 0718, 861202, fell asleep on security watch.
Awarded forfeiture of $100.00 (suspended for 3 months), restriction and extra duties for 14 days.  Not appealed.

861212:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1:  Disobey a lawful order on 1110, 861212.
Specification 2:  Disobey a lawful order on 1800, 861209.
Violation of UCMJ, Article 134: Violate Btry restriction.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

861215:	Counseled for deficiencies in performance and conduct.  [Failure to adhere to Marine Corps rules, regulations and standards, flagrant disregard for orders issued to him, nonchalant and belligerent attitude.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861231:	Vacate suspension from NJP on 861205.

871007:	Counseled for deficiencies in performance and conduct.  [Personal confrontation with another Marine in his platoon in the troop mess deck on 871004.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871017:	Counseled for deficiencies in performance and conduct.  [Failure to obey orders.  Physical and verbal assault towards his superiors.  Disrespect to an officer and disturbing the good order and discipline of his unit.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871026:	NJP for violation of UCMJ, Article 91:  Willfully disobeyed the order to SSgt H_ to calm down and keep quiet; violation of UCMJ, Article 91: On 870922, struck Cpl F_ in the head with his fists; violation of UCMJ, Article 92: On 870922, violated BnO P11100.1 by possessing alcohol in his BEQ room; violation of UCMJ, Article 116: On 870922, wrongfully breached the peace by fighting outside HP#235; violation of UCMJ, Article 117: On 870922, wrongfully pointed his finger at CWO2 S_ and said, “Stay away from me, I hate white people” and “No white boy touches me,” or words to that effect; violation of UCMJ, Article 134: Wrongfully communicated a threat to Cpl F_ by saying, “You’re a dead man, I’ll kill you.”
	Awarded forfeiture of $350.00 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

880316:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory conduct and performance while assigned to guard duty aboard the USS Nassau.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881004:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 128:  Assault Cpl F_ on 19 Aug 88.
	Charge II: violation of the UCMJ, Article 92.
	Specification:  Wrongfully disobey a lawful order.
Charge III: violation of the UCMJ, Article 95.
Specification:  Resist apprehension on 19 Aug 88.
Charge IV: violation of the UCMJ, Article 121.
Specification:  Steal an air pistol.
Charge V: violation of the UCMJ, Article 134.
Specification:  On 19 Aug 88, wrongfully communicate a threat to injure PFC F_.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, not guilty.  To Charge III and specification thereunder, guilty.  To Charge IV and specification thereunder, not guilty.  To Charge V and specification thereunder, guilty.
	Sentence:  Reduction to E-1, confinement for two months, and a bad conduct discharge.
	CA 881209:  Sentence approved and ordered executed except for the BCD.

881013:	Applicant waived appellate review.

881212:	To appellate leave.

890328:	NC&PB denied clemency and restoration.

900122:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900330 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial and was subsequently approved by both the convening and appellate review authorities (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1.  In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, disrespect to a NCO; Article 92, disobey a lawful order; Article 128, assault; Article 134, communicating a threat.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023